The opinion
Colt, J.
The plaintiffs claim damages both on account of the inferior quality of the coal delivered, and the failure to deliver within the time named in the contract. The defendants insist that both claims were waived. As to the first, there was evidence that the quality of the coal was objected to within a reasonable time after its receipt. And as to the second, there was evidence of an oral arrangement for delivery after the expiration of the time named in the contract, upon which the judge was asked to rule as matter of law. But the arrangement was a matter upon which the evidence was conflicting, and tended on the one side to show an unconditional consent of the plaintiffs to extend the time, and on the other that the subsequent delivery, consented to or insisted on, was to be subject to the claim for any increased cost occasioned by advances in freights or insurance. Whether there was an intentional and unconditional surrender of the right to have the coal delivered according to the terms of the contract, both as respects time and quality, was in the province of the jury to decide, and the question was left to them with appropriate instructions. Fox v. Harding, 7 Cush. 516 , 520.
As to the rule of damages, the plaintiffs are entitled to recover for such losses as were the direct and natural consequence of the *133 defendants’ failure to perform, and also for such as were foreseen, or may reasonably be supposed to have been foreseen, at the time of making the contract. To ascertain what these were, resort must be had to the terms of the contract for its meaning, as applied to the subject matter, and as interpreted by the general and known usages of the business to which it refers. It was in substance an agreement tó deliver on board vessels at Philadelphia, to the plaintiffs, who are a manufacturing company at Lowell, at a fixed price, a large quantity of coal, in equal monthly proportions, during the time included in the contract. A sample was to be sent and tested by the plaintiffs, and bills of lading made to wharves either in Salem or Boston, at the plaintiffs’ option, so as to be conveniently delivered to the cars in either place, as customary, and without doubt contemplating its further transportation by rail to the plaintiffs’ place of business. It was therefore not simply the sale of property to be delivered at a particular time and place, but it was an agreement for the delivery of property to be transported by vessels and by railroad, at the plaintiffs’ expense, to their place of business in Lowell.
This construction of the contract fully sustains the rule of damages laid down at the trial. The loss from inferior quality, to which the plaintiffs are entitled, is the loss which they sustained at Lowell. There is nothing in the case to show that they were bound, or that it was expected they would be bound, by any prior acceptance of it, at the place of shipment or elsewhere; and so the loss by the increased charges for freight and insurance is a fair measure of damage to them, ascertained by the failure to deliver in time. Nor do we perceive that any wrong is done by taking the increased rates of freight and insurance above the average rates during the contract period, especially as it does not appeair that the average rates for shipment were higher than the rates paid at the termination of the contract period. These items of damage are fairly contemplated by the contract.
The difference in market value of the coal between the time of actual delivery, and the time it should have been delivered, as a rule of damages, is not applicable. The plaintiffs received all the coal called for by the contract, at the contract price, and do *134 not claim damages for any deficiency in quantity. They aré entitled to the benefit of their contract, although the market value had increased by the delay.
The objections taken to the admissibility of the plaintiffs’ evidence appear by this discussion to have been properly overruled. It was clearly competent for the treasurer to testify that he had long been in the practice of buying and receiving coo., from Philadelphia, and that freights were usually higher in autumn than in summer. The understanding of the parties must be ascertained by the nature of the traffic to which the contract refers. Cutting v. Grand Trunk Railway Co. 13 Allen, 381 . Batchelder v. Sturgis, 3 Cush. 201 , 204. Bartlett v. Blanchard, 13 Gray, 429 .
¡Exceptions overruled.